Today in Misjudgment History (1978) - In Stump v. Sparkman, a § 1983 suit against a judge who signed off on a mother's request for her teenage daughter's involuntary sterilization, the Supreme Court held that granting such a petition was a judicial act and the judge therefore had judicial immunity.

March 29, 2006

The Schizer!

I'm glad to see that after posting and linking the New York Sun op-ed that accused Columbia University's president of hiring a law school professor to reward her for her part in the Grutter/Gratz v. Bollinger cases, some blogging professors are also pointing out Dean Schizer's response, and I appreciate Prof. Heriot's publicizing Avery Katz's peek into the deliberations over the complaint against Ms. Johnson. Still, if there's one area in which law school profs ought to bring a little critical expertise to bear, it is the hiring of their fellow faculty members. The main point that Schizer raises -- a university president's lack of involvement in law school hiring -- was obvious to a law student and should have been equally so to professors.

UPDATE: Curt Levey, author of the original NY Sun piece, attempts to defend it, and Prof. Bainbridge amends his post with the full comments from Prof. Katz. 3L Anthony Rickey rounds it up and agrees that the central claim of even the appearance of a conflict of interest is silly, but voices concern that conservative students may steer away from Prof. Johson due to her history of partisanship. I frankly find this unlikely; even if one is inclined to assume bad faith on the professor's part, blind grading and other protections make it difficult to wreak liberal vengeance on the minority of conservative students who are willing to enliven classroom discussion.

Scrappy Little NYU

In honor of the new US News law school rankings in which New York University and Columbia share the #4 spot, the faculty members who are movin' on down to the Village, and the likelihood that NYU will whup Columbia once again in the Dean's Cup, I feel moved to quote a novel set in 1987 Manhattan that I recently re-read. The book's inspiration was an infamous 1986 Newsweek article that claimed by 40, a single college-educated white woman was "more likely to be killed by a terrorist" than to get married, and a series of events leads the protagonist to be arrested:

Someday I would look back on this and laugh. "Hahaha," I'd say to my grandchildren, "did I ever tell you about the time I was charged with first-degree murder? It took Uncle Brook a whole hour to get me off." All I needed was Charley Ray's lawyer -- my lawyer, the man who would become my children's and grandchildren's beloved Uncle Brook -- to stride in, briefcase locks snapping, and take me home. I tried to imagine Charley Ray's lawyer. Did bikers use the same sort of lawyer as the mob did? Probably not quite that classy. Cheaper restaurants and ready-made shirts. Bloomfield was wrong. He wouldn't be some Harvard wunderkind named Brook or Wesley in a seven-hundred-dollar suit and platinum cuff links who would make me a million suing the cops for false arrest. No, he'd be some sharp, cynical, crafty sonofabitch from NYU named Al or Victor in a seven-hundred-dollar suit he hadn't paid for and a gold watch who'd make me two million suing the cops.

UPDATE: As commenter CLSgrad says, Columbia was indeed victorious in this year's student game and halftime faculty match, though note that one of our departing professors, Cynthia Estlund (she of songs about Property law fame), assisted in the 3-2 win.

March 28, 2006

Today / 03.28.06

Today in Misjudgment History (1978) - In Stump v. Sparkman, a § 1983 suit against a judge who signed off on a mother's request for her teenage daughter's involuntary sterilization, the Supreme Court held that granting such a petition was a judicial act and the judge therefore had judicial immunity.

March 27, 2006

They Accuse; He'll Refuse to Recuse

One well-known aspect of Justice Antonin Scalia's persona that I failed to versify in Smells Like Scalia (a title, incidentally, that was originated by another Law Revue writer and intended by him to be about the supposed similarities between Scalia and Alito) is his tendency to get embroiled in disputes about whether he can bring the correct open-mindedness to oral argument after having said or done something that brings his disinterest into doubt. Scalia recognized that he already had judged the Pledge of Allegiance case by deriding the lower court's ruling publicly, and recused himself without prompting beyond Newdow's request. In the Cheney matter, he scathingly refused to do so, and the litigants were not so foolhardy as to claim that Justice Scalia had evinced any actual bias during arguments; much of the push for recusal was based on the appearance of impropriety. Now Newsweek is trying to drum up a debate: Should Scalia Recuse Himself from Gitmo Case?

I wondered who else had excused themselves from oral arguments lately. Chief Justice Roberts already is out of the Hamdan case, having ruled on it as a DC Circuit judge, and recused himself from Laboratory Corp of America v. Metabolite Laboratories (without explanation, but probably because of his lengthy employment with the firm representing the appellant). In a 2001 case on California cannabis and 2004 Olympic Airways v. Husain, Justice Breyer recused himself because his brother, Charles R. Breyer, was the District Court judge who originally heard the suits. O'Connor and Breyer recused themselves from several procedural matters and a couple of substantive ones due to their owning stock in the companies involved, O'Connor doing so sufficiently often that Baker Botts dubbed it the OOPS (O'Connor Owns Party's Stock) docket. Ginsburg has been criticized for failing to do the same when her husband had those companies in his IRA. However, there don't seem to be any recent instances of judges' recusing themselves because they seemed to have pre-judged a case other than Scalia in Newdow.

This exception probably will remain one. There Scalia specifically remarked on the lower court's ruling that would be appealed to the Supreme Court, whereas he does not seem to have mentioned the Hamdan case specifically, only that combatants are not entitled to regular trials instead of military commissions. (A point on which I would agree if we could figure out to what they are entitled -- POW protections, including the Uniform Code of Military Justice? some new status defined by Congress? "Whatever the president feels like" is not an acceptable answer.) His exact words, as transcribed by Newsweek, were, "If he was captured by my army on a battlefield, that is where he belongs. I had a son on that battlefield and they were shooting at my son and I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy." This actually doesn't fit Hamdan very well, considering that he's alleged to have been a bodyguard and driver for bin Laden, not a fighter; and that his lawyers claim that he was trying to get out of Afghanistan and return to his family in Yemen when he was captured by Afghans. An attempt to get Scalia to recuse himself on this case is doomed to failure.

UPDATE: From the Washington Post -- "A] group of retired U.S. generals and admirals has asked Justice Antonin Scalia to recuse himself, arguing that his recent public comments on the subject make it impossible for him to appear impartial. In a letter delivered to the court late yesterday, a lawyer for the retired officers cited news reports of Scalia's March 8 remarks to an audience at the University of Freiburg in Switzerland."

UPDATE II: I don't even know what to say about this. Outside a church, too!

Reason #23 for Liberals to Join Fed Soc

Well, that's not precisely true, because the Federalists are slightly less given to absurd accusations than are the above venues. For example, on February 22, the following announcement went out on the Columbia Law School mailing lists:

I am delighted to report that a new faculty member, Olati Johnson, will join the faculty on July 1 to teach civil procedure, constitutional law, and advanced constitional law offerings. Olati brings a wealth of experience to her scholarship and teaching. She clerked for David Tatel on the D.C. Circuit, and for Justice Stevens on the U.S. Supreme Court. After working on employment and education-related cases for the N.A.A.C.P. Legal Defense Fund, including the Michigan affirmative action cases, Olati worked for Senator Ted Kennedy on civil rights, First Amendment, and judicial nominations. She has deep expertise on civil rights policy and advocacy strategies, as well as on the legislative process. Many of us know Olati already because she has been serving as a Kellis Parker Fellow at the Law School for the past two years. Please join me in welcoming Olati to the faculty.

In discussion of this and other additions to our faculty, someone sent this link:

The Center for Individual Freedom has learned the identities of two former aides to U.S. Senator Edward M. Kennedy (D-Mass.) who, in a memo dated April 17, 2002, recommended that the Senator delay confirmation proceedings of Judge Julia Smith Gibbons to the U.S. Court of Appeals for the 6th Circuit. The purpose of the delay was to influence the outcome of the University of Michigan affirmative action cases, then pending before that court.
Olati Johnson, then Judiciary Counsel to Senator Kennedy, wrote the memo. But immediately prior to joining Senator Kennedy’s staff in September 2001, Johnson was Assistant Counsel at the NAACP Legal Defense and Educational Fund. There she served as co-counsel for Defendant-Intervenors in the University of Michigan undergraduate school affirmative action case before the 6th Circuit.

This seems to me a fair point to raise about ethics. Why is a person who worked on a case making recommendations that relate to it? Sen. Kennedy should consider adopting some of the rules that law firms have about ensuring that there is no bias, nor appearance of impropriety, in having people who have worked for a client then take on a different role in which they could favor that former client.

However, the suggestions made by the NY Sun and linked by the "Thinker" and Prof. Bainbridge struck me as quite silly, and Prof. Bainbridge as a law professor -- unless UCLA does things totally differently from UTenn and Texas, the processes of which Glenn Reynolds and Brian Leiter respectively described and Bainbridge linked -- ought to know better. From the Sun:

Ms. Johnson played a central role in the two-year-old Senate scandal known as Memogate, which involved, most notoriously, her recommendation that the judicial confirmation process be rigged to influence the outcome of a pair of pending federal court cases. The cases were the landmark challenges to affirmative action at the University of Michigan, and the defendant was the university’s president at the time, Lee Bollinger. That Ms. Johnson should now find herself working under Mr. Bollinger raises questions about a conflict of interest and a possible payoff for services rendered.

To my understanding, the Columbia University president has little role in hiring faculty in general, and particularly in the graduate schools. Frankly, nowadays the primary job of the president of a major university is to bring money in by maintaining positive PR, satisfying his constituencies, gladhanding alumni who have made good, etc. It's nice for him to be intellectually respectable (the president of my alma mater is reputed to speak twelve languages), but not vital. Indeed, becoming over-involved in faculty minutiae seems to be likely to lead to ruin, as in the example of Harvard's president Lawrence Sumners, who pissed off various professors by telling them how to do their job. I haven't seen President Bollinger at all this year, and saw him once last year only because I attended one of the town-hall style meetings he held to manage the mini-crisis over alleged anti-Jewish sentiment in the Middle Eastern studies department.

Instead of the fantasized scenario in which President Bollinger picks the law school's professors, the hiring committee suggests possibilities and the present faculty votes on whether to extend an offer; I think the dean can put in his two cents. Considering Dean Schizer's recent "outing" of himself as a former officer of the Yale Fed Soc, perhaps he has better cred among conservatives than Bollinger does. Bollinger is listed as a member of the Columbia Law faculty, but unlike, say, president emeritus Michael Sovern, who teaches legal methods every fall, I've never seen Bollinger listed as a professor for a course and as far as I know, he does not attend faculty meetings or vote on extending offers. Even if President Bollinger were involved in hiring Prof. Johnson, why would he want to give her anything? As co-counsel in the UMich case, she had quite enough personal interest in wanting the affirmative action program to stand; she had no need to do it for Bollinger, and he has no reason to reward her.

I'm willing to contemplate that Prof. Johnson may have acted inappropriately, not only in her specific suggestion but also by not quasi-recusing herself from dealing in matters where she had been an active participant before joining Sen. Kennedy's office. That her hiring is some sort of quid pro quo for President Bollinger, or that anyone except the most thoughtless* could deem it to have even the apperance of such, is ridiculous.

* I first wrote "witless" but rethought because Prof. Bainbridge certainly has his wits about him with regard to wine and securities, areas in which I'm profoundly ignorant and therefore respectful of those more knowledgeable. His post seems to have been an instance of auto-linking without necessarily thinking through the implications, something of which nearly all bloggers have been guilty.

The Money Shot

The U.S. Mint in Denver turns out 32 million coins a day, and it is heavily guarded against intrusion. But it's the situation within, say some employees, that is worrisome.
Stashes of sex magazines. A secret attic room where male employees could hide out to peruse them. The "fresh-meat syndrome," wherein new female employees faced crudely suggestive comments about their appearance. A manager who often addressed one woman as a "fat bitch."

Technically, the pornography and masturbation corner aren't as overtly hostile as the suggestive comments and insults, but they immediately reminded me of the Catharine MacKinnon quote I cited in the previous post about sex discriminatory workplaces: "Somebody ought to get worried about the fact that no work is getting done." The hell with firing the men for creating a hostile environment; why would anyone who did this, or a manager who tolerated it, get away with not working while being paid to do so? Hanging out in the break room discussing Survivor wastes time, but at least it socializes the employees and creates a collegial working environment, while there's (presumably) no such justification for the solitary vice.

(OK, so all I can think of are Blakely (kidnapped his estranged wife) and Hammon/ Davis -- which the Seattle Times headlines as being about domestic assault. Crawford has the interesting twist of being a case in which the defendant committed the crime because his victim had tried to assault the former's wife.)

March 23, 2006

A Gentle Note to the Supremes

While the Court has been busy reshaping Federal and state cimrinal procedure in the last few years (see, e.g., Crawford and Booker), the changes have caused havoc in the lower courts. Havoc not in the sense of confusion (though Booker has brought a fair degree of that too) but more in the sense of a flood of claims under 2254 and 2255.
Thus the lower courts have to decide whether the SCOTUS meant to enact a watershed rule of criminal procedure under a Teague analysis.

Things would be a lot easier if there was dictum somewhere stating what the Court considers its new holding to be. Is that so hard to do? Maybe even a footnote. "Although we are kinda dramatically altering the sentencing guidelines, this isn't watershed yo."

It should be noted though that to date I have not seen a single Circuit or District Court find the Booker and Crawford rules applicable on collateral review. So I guess these issues have a funny way of working out, but I'd sure hate to be the first judge to decide. The reason I even mention this issue is because it's a tad disheartening to see a Court of Appeals still dealing with Crawford when the Supremes could have dealt with it by the stroke of a pen. (HT: Another Bashman in the wall).

On a sidenote: I will try to look for legal issues in Central Europe. Who knows, maybe I'll figure out what the circle with an X through it means.

I'm N Law (Wit a Stripper)

Wearing a scanty blue gown with rhinestone clasps, Nicolette Hart explains how she can make up to $2,500 a night with investment bankers and their clients in a Manhattan strip club's private rooms.
She writhes and rubs her nearly naked body against as many as seven men, doing "lap dances" for $400 an hour. (The room costs an additional $200 for the hour.) Hart, who once worked for a venture-capital firm, always asks what brought the men together. They often say they're having a meeting.
"I say, 'You're having a business meeting in a strip club?' " Hart says in an interview in the dressing room at Rick's Cabaret here. [...]
Attorney Rohit Sabharwal, a Rick's regular, says he often takes clients of his small law firm with him and such entertaining was common when he was at a large firm, too. "Nobody really objects," Sabharwal says. "I think it's a lot more civilized in the law profession. I don't think women have a problem succeeding in law firms."

If that's what they're teaching at Penn Law, I suppose I should be grateful not to have made it off their waiting list. Still, whether business activity at a strip club is inherently discriminatory against women in the company does not have as obvious an answer as the article implies.

Deliberately excluding female co-workers from such jaunts would be overt discrimination, and inasmuch as that was what was happening at Merrill Lynch, Morgan Stanley, UBS et al., their multi-million dollar payouts are unsurprising. For example, Morgan Stanley plaintiff Allison Schieffelin says that she was told that she wasn't invited to a client entertainment in Las Vegas "because the men would be uncomfortable participating in sexually oriented entertainment with a woman colleague present, especially one who knew their wives." This is obviously unacceptable; managers cannot choose to keep some employees from having the same opportunities for client contact as others do.

However, a more subtle form of discrimination would be to invite the women along and hope that most will be too uncomfortable with the idea to accept. Of course, the success of this strategy depends on the target; a woman who said yes and spent the night cheerfully engaging the strippers could end up either becoming "one of the boys," or making the client feel uncomfortable with having a female around in a non-subservient position. As long as women also are invited, the firms have covered their asses, so to speak.

"There are two levels of discrimination: the frat house environment in the office and the deeply embedded practices that are just starting to be uncovered, like the distribution of accounts, business leads and promotions," says Hydie Sumner, a financial consultant who was awarded $2.2 million in 2004 after suing Merrill Lynch for gender discrimination. "When 'business activities' involve the strip club, golf course or hunting ranches ... discrimination is often perpetuated as those in power support and advance those with like minds and tastes."

That those in authority often prefer to have like-minded people around is a truism, notwithstanding the trumpeting of diversity. Nor is it peculiar to white males. Companies run by people of color sometimes hire a disproportionate number of people of the same race because this is the management's social network. My friends who work in female-dominated industries such as certain areas of publishing find favoritism playing out among women based on similar lifestyles (single versus married with children) or backgrounds (socioeconomic level of family, place of eduation). But this human instinct is no better merely because it is universal.

The point at which such tribalism becomes discriminatory, however, is difficult to determine. A longstanding point of discussion in feminist literature is whether women should adapt themselves to the existing power structure -- becoming golfers, hunters and strip club enthusiasts, which makes only exclusion discriminatory -- or should attempt to change how the workplace operates, such that those venues no longer are considered appropriate for business interaction. An alteration of the latter sort likely would have benefits for others who must decide between accepting an invitation that could further their careers, and maintaining their own principles. For example, a religious male employee may be expected to join the gang at the strip club, but choose not to do so on the ground that participating in the outing would violate his beliefs.

Certainly strip clubs seem to me a non-essential arena for establishing client relationships. The company at which I worked before law school preferred dinners and sporting events, activities that were unlikely to jar the sensibilities of either workers or clients. As Catharine McKinnon once said when asked if sex harassment law was stifling freedom of expression on the job, "Somebody ought to get worried about the fact that no work is getting done." A company that censors employee speech might be too draconian, but one that refuses to pay for a lapdance surely isn't.

One obvious problem with their data is that people might be lawyers for 40 or 50 years, but women didn't reach 40 percent of law school students until twenty years ago and didn't reach 50 percent until 2000. It was 20 percent thirty years ago and 10 percent just 23 years ago. It is the average over the entire period that counts, not just the most recent graduation numbers. Indeed if it takes 7 years or so for people to become partners you can't even compare the graduation rates prior to 1997 (since their numbers end in 2004).

I said something similar to my mother recently when she asked whether there was an equal number of male and female judges: that judges were older attorneys and therefore necessarily skewed male, but that we were seeing more gender balance over time. I also mentioned that there seemed to be more women in particular judgeships, such as family court and state courts, than others. This might apply to women in the legal profession as a whole -- they might not be in the specific area examined but in others, so that an article about law firm partners may miss women's presence in non-profits and government and as corporate counsel.

Then Lott got my Whaaaa?: "A second obvious problem is that law schools might have let in lower quality women then [sic] men in order to get the admission rates so high for women." Lott doesn't mention whether this implies that before we had gender parity, the women admitted to law school were much higher quality than the men, but I can't say that this explanation is one that came to my mind unaided. The greyhaired partner cohort compared to the recent law school classes can be fairly called apples and oranges; the legal abilities of male law students compared to that of female students seems much less disparate.

On the other hand, is there a good way to compare the achievement of recent male and female law graduates? The upcoming Supreme Court clerkship class would seem to uphold Lott's belief, as Ginsburg and Breyer are the only justices with two male and two female clerks. Souter, Scalia and Thomas hired only men; Kennedy, Stevens, Roberts and Alito each hired one woman. O’Connor, retired and therefore entitled to one clerk, kept a woman. But this has its own selection bias due to the relative shortage of women with the ideological biases that the non-liberal justices might prefer.

The NYT article holds up as a model the life of Proskauer partner Bettina B. Plevan, who claims that her husband split the domestic work of childrearing and chores with her, and reaffirms this explicitly with a quote from another woman, who started a firm with her husband, on how to solve the problem: "One thing we need is a sense of shared responsibilities for the household and, most importantly, shared responsibilities for taking care of the kids." AK wishes there had been more on this topic, but the difficulty of having gender equality in the workplace without having it in family life is a tale more than twice-told. Jeremy Blachman sees the women who don't want to fall in line with what law firms demand as perhaps having the right idea.

An anonymous blogger expands upon Jennifer L. Bluestein's (Baker & McKenzie) remark, "Women are less likely to get the attention than men. Some of this is left over from the sexual harassment cases from the 90's, but I think that it's more because of the fact that we don't look like men," by declaring the need to "hit [men] over the head with their passive discriminatory ways." Her particular method struck me as slightly passive aggressive, with its hint of a claim that her employer was violating the law and its failure to state the existence (exclusion, lower pay) rather than effect (only one female employee) of such discrimination.

Anupam Chander sees the possibility of discrimination as well -- "Remarkably absent from the story is discrimination based on the partners' perceptions of relative ability" -- but also says, "it is difficult to hazard a clear explanation in these matters." Regardless of one's view about whether a lack of female partners is a problem, I suspect most people who have interacted with law firms would agree with this generalized complaint: "Law firms like to talk about running the firm like a business and looking at the numbers, but they're running on an institutional model that's about 200 years old. Most law firms do a horrible job of managing their personnel, in terms of training them and communicating with them."

March 17, 2006

Today / 03.17.06

March 16, 2006

OrinKerr.com

We at De Novo are way behind everyone else in noting that Prof. Orin Kerr, while continuing to blog at the Volokh Conspiracy, has set up his own site for legal commentary and non-trollish commenters. His method of reviewing comments and publishing those that are worthwhile, as well as granting automatically published commenter status invitations to those whom he knows to be useful contributors to discussion, strikes me as preferable to the rather more cliquish rule at Wonkette.

March 15, 2006

Why Won't They Let Me In?

No I'm not talking about clubs in Vegas, but actually this press release on behalf of an Army captain who thinks he is being denied admission to law schools because he served in Iraq. The key sentence is: "While having average and/or below average grades and LSAT scores..."

I'm never too fond of anyone with a sense of entitlement. This is just a perversion of the previous kid who thought he deserved to get in everywhere b/c of his numbers. Except this one wants schools to overlook the numbers and admit him for his valor. The United States government has a perfectly well-established process for awarding valor. A seat in Civ Pro is not one of them.

March 12, 2006

Privacy, Equality and Public Policy

Despite the vast contempt in which my physician-dominated circle of family friends holds attorneys, a visit home always entails requests for a lawyer's opinion. Thankfully, most of these requests are on abstract matters rather than personal legal problems, so I don't have to cite the prohibition on the unauthorized practice of law (which explanation tends to be summarized by listeners as "Ah, they don't want you cutting into the other guys' business by giving it away for free, huh?"). The big topic of the day among non-law students is not the Solomon Amendment nor even state bans on abortion; it's "Roe v. Wade for men."

The actual reasoning of Roe v. Wade, and of subsequent decisions upholding a constitutional right to obtain an abortion, is of course* quite useless for this crusade to end the imposition of child support responsibility on biological fathers. Roe is about the right of privacy against government intrustion, and to some degree personal liberty in the body, the latter aspect being championed by 9th Amendment types. Child support, on the other hand, has no obvious connection to privacy; freedom from it is a matter of economic rather than social liberty, and economic substantive due process has yet to regain its purchase on Supreme Court jurisprudence. Government began mandating child support so it would not be burdened with the financial cost of raising the children of unmarried and divorced parents, and this is a policy necessity that seems likely to out-balance any opposing claim.

Nonetheless, the equal protection basis for the lawsuit** is interesting from an alternative history perspective. What If... Roe had been decided on gender equality instead of privacy penumbras? Articles about this possibility abound, but I'd recommend Justice Ginsburg's 1984 Lecture cum Essay: Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C.L. REV. 375 for its extreme brevity and thorough footnoting. (I consider this a good combination for a blog post -- get the opinion across quickly while providing lots of links for those who wish to explore further.)

I commented at the outset that I believe the Court presented an incomplete justification for its action. Academic criticism of Roe, charging the Court with reading its own values into the due process clause, might have been less pointed had the Court placed the woman alone, rather than the woman tied to her physician, at the center of its attention. Professor Karst's commentary is indicative of the perspective not developed in the High Court's opinion: he solidly linked abortion prohibitions with discrimination against women. The issue in Roe, he wrote, deeply touched and concerned "women's position in society in relation to men." It is not a sufficient answer to charge it all to women's anatomy -- a natural, not man-made, phenomenon. Society, not anatomy, "places a greater stigma on unmarried women who become pregnant than on the men who father their children." Society expects, but nature does not command, that "women take the major responsibility . . . for child care" and that they will stay with their children, bearing nurture and support burdens alone, when fathers deny paternity or otherwise refuse to provide care or financial support for unwanted offspring.

* I say "of course," but there is a frustratingly stupid post on National Review's Bench blawg by Matthew Franck, who also doesn't seem to have read Roe and its progeny. He concludes some remarks about how legal abortion and the Pill allowed men to have sex without consequences (odd how it's only methods under women's control that are problematic, while our old buddy the condom goes unmentioned) by saying,

At the end of this road, as I argued a few months ago here, is a man’s “right” to seek an injunction forcing a woman to have an abortion if a pregnancy is “unplanned.” There is no reason, under the abortion regime as it stands in our constitutional law, that this last barbarous step cannot be taken. But then there is simply no reason at work in that regime at all—only willfulness.

Considering that our "abortion regime" stands against forcing women to get their husbands' permission to get an abortion, on the rationale that the State cannot "'delegate to a spouse a veto power which the [S]tate itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy,'" I'm sincerely curious as to how Franck gets from the "willfulness" of those wayward women who get abortions to the ability of their impregnators to exercise control over them. No doubt opponents of legal abortion find calling the privacy jurisprudence nonsensical more satisfying than performing the 1L con law task of understanding it, but that's a mentality I'd expect more at the Corner than on what purports to be a blawg.

** Picking on typos in a filing by an individual or even organization of limited resources is mean, but this particular malapropism in the list of injuries amused me: "Subjecting himself to embarrassment, public reticule, anger, loss of self esteem, etc." Just something about carrying a lady's bag in public when suing over gender equality... it's not a purse, it's European!

Remedial Education on De Facto v. De Jure

Judging by their comparison of 1954 America to present-day Europe, the New York Times editorial board is slightly confused about Brown v. Board. In an otherwise worthy condemnation of the discrimination faced by Roma (aka Gypsies) in Europe, focusing on the vastly disproportionate placement and representation of Roma children in "dead-end schools for the mentally handicapped," they conclude,

Decades ago, America painfully learned that government policies and social attitudes could keep an underclass down, and that discrimination might exist even though laws seemed fair. Europe has not yet absorbed these ideas. The Court of Human Rights has long been reluctant to prohibit biased practices without proof of intent to discriminate, allowing discrimination to hide behind another name. The court should seize the opportunity to modernize and reverse a decision that has anchored European race relations today well behind where America was in 1954.

Unless there are actual laws requiring Roma children to be put into special schools, the comaprison is inapt. In 1954, the schools in American states without laws mandating racial segregation often were segregated in fact due to housing patterns. The busing decisions of the 1960s and 1970s that forced integration on northern cities, and the legislation against housing discrimination, were the real fight against apparently fair laws. Even today, African American children are overrepresented in precisely the same place as the Romas about whom the Times frets: special ed. Moreover, U.S. courts have limited receptiveness to the pattern theory of actionable discrimination that the Times implicitly is pushing for the European Court of Human Rights; the Supreme Court, for example, has rejected challenges to capital punishment that are based on the disproportionate number of African Americans who receive it, demanding instead that plaintiffs show specific proof of unjust treatment. Unless the European courts refuse to hear even those cases, the Times has no reason for Americans to feel superior on this issue (though pogroms and forced sterilization -- something that we at least inflicted on poor whites too! -- are another matter).

March 10, 2006

Scrunchies Are Back!

If they're good enough for Justice Ginsburg, they're once again good enough for me.

In more serious news regarding my favorite justice, while most of the right-wing blogs and news sites were too busy chanting "If this had been a conservative justice..." to remember Justice Ginsburg's medical history, the Austin Chronicle spells out what the mainstream media delicately neglected:

But the most alarming interlude was that of Ruth Bader Ginsburg, who asked a few early questions in a faint, querulous voice, was not heard from again in the spirited and sometimes crackling debate, and then late in the second hour visibly fell asleep, head deeply bowed, for about 15 minutes. She had sounded ill, frankly, and she looked it, and one can only hope that she wasn't as exhausted over the enormous pile of Texas briefs as she was over the tip of the freighted history represented by this fleeting, animated discussion of the future of Texas politics, as well as of much of the nation.

In 1992, 1993, and 1994, the House passed legislation to make it easier for the President to rescind funds. Instead of allowing Congress to ignore presidential recommendations for rescissions, “expedited rescission” required at least one House to vote on his proposals. If one house disapproved, the other House need take no action because approval by both houses would be necessary. Expedited rescission attracted support from some lawmakers who thought it would transfer less congressional power to the President than other reform ideas. The Senate took no action on the expedited rescission bills passed by the House, preferring to explore two other approaches: “enhanced rescission” and “separate enrollment.”

Senate and House bill summaries and files -- my glance at the lists of co-sponsors didn't turn up many Democrats whom I knew (Mark Udall in the House, John Kerry in the Senate).

UPDATE: Speaking of surprising allies, the line-ups on Clinton v. City of New York -- the case on the constitutionality of the Line Item Veto Act of 1997 Act -- turn the cliched Rehnquist Court blocs upside down: "Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Kennedy, Souter, Thomas, and Ginsburg, JJ., joined. Kennedy, J., filed a concurring opinion. Scalia, J., filed an opinion concurring in part and dissenting in part, in which O’Connor, J., joined, and in which Breyer, J., joined as to Part III. Breyer, J., filed a dissenting opinion, in which O’Connor and Scalia, JJ., joined as to Part III."

Today / 03.10.06

March 09, 2006

A FAIR Assortment

I read through the Court's ruling in Rumsfeld v. FAIR quickly, and will be commenting more on others' comments than the decision, having already opined on the case itself well before the oral arguments on it. I'm not surprised by the result. At most, I'd thought there was a chance of a dissent based on the Dubler-Witt argument that A. Rickey finds incredible. But a ruling against the military's recruitment procedures, in wartime, with the Bob Jones precedent to hobble liberal justices from giving schools free speech rein to take government money while violating federal law? No.

'The Constitution grants Congress the power to "provide for the common Defence," "[t]o raise and support Armies," and "[t]o provide and maintain a Navy." Congress' power in this area "is broad and sweeping". . . . That is, of course, unless Congress exceeds constitutional limitations on its power in enacting [] legislation."'
Now, there's nothing particularly remarkable in that statement. But when viewed in light of the ongoing controversy over the Executive's power as Commander-in-Chief in the war on terror vs. Congressional power to limit the President's authority regarding, say, detainees or wiretaps, this passage could take on more import than mere throat-clearing at the opening of the Court's discussion of the Spending Clause issues in the Solomon Amendment case.

I looked at the statement through that lens and thought exactly the opposite of Milbarge's conclusion; rather than seeing it as foreshadowing limits on Article II power due to the "broad and sweeping," I thought, "Uh oh, Article II-John Yoo stick of 'Congress exceeds constitutional limitations.'" This is some murky tea.

Should law schools take up Will Baude's suggestion of dissociating from their universities, thus enabling the rest of the institution to keep the money and the law school to keep the speech, they're likely to be met with ever-wider definitions of what constitutes federal support, including loans. Is there a private law school in the country that could remain open without government-backed funding for its students' tuition fees?

Paul Horwitz's belief that the AALS was driving individual law schools' opposition to discriminatory recruiters, and that, unlike the discrimination at issue in Boy Scouts v. Dale, recruitment isn't integral to schools' mission, is in some opposition to my previously-expressed idea that the Dale dissent actually favors distinguishing among law schools. An institution with a very clear and absolute commitment to sexual orientation equality, extending from partner benefits for employees to recognizing same-sex couples for social events and student housing (neither of which, to my knowledge, is required by the AALS), is engaged in an expression that would be contradicted by countenancing discrimination in any area, including recruitment. Employee benefits aren't central to a law school's academic mission, but actions that went above and beyond what the AALS demands for accreditation can be viewed in total to constitute expression.

Dale Carpenter highlights the portion of the opinion on which the Outlaws seized:

As a practical matter, the ruling changes nothing in the steps many schools have taken to “ameliorate” the presence of military recruiters by, for example, hosting fora on the military’s policy on the day military recruiters are present, or posting notices of opposition to the presence of discrimination on campus, even outside the door where military recruiters are interviewing. In fact, the decision today appears to give a bright green light to these efforts that some schools may have avoided until now for fear they would lose funding. From the opinion:

The Solomon Amendment neither limits what law schools may say nor requires them to say anything. Law schools remain free under the statute to express whatever views they may have on the military's congressionally mandated employment policy, all the while maintaining eligibility for federal funds. See Tr. of Oral Arg. 25 (Solicitor General acknowledging that law schools could 'put signs on the bulletin board next to the door, they could engage in speech, they could help organize student protests.').

Slip op. at 10. There was some question before this decision whether schools that posted these notices, or even organized protests, might not be giving the military access to their facilities that was "equal" to the access given other employers. As a matter of statutory construction, that worry should be over. Thus, the Court suggests, ameliorate at will.

This was a real concern -- one of the measures I suggested (having the school institutionally encourage students to go off-campus for JAG interviews) was regarded by some students as likely to be treated as impermissible discrimination against the military recruiters. After all, according to the dean of Columbia Law, "[b]efore 2001, military recruiting was coordinated by the University's Government Affairs office, instead of by the Law School's Office of Career Services, and interviews were conducted nearby, instead of in a Law School building. However, since 2001, the U.S. Department of Defense ("DOD") has rejected this approach, insisting instead on equal access to our recruiting process, based on its interpretation of federal legislation known as the Solomon Amendment." The LGBT group at Columbia Law responded to the Solomon decision with a schoolwide email* stating, inter alia,

In light of the continuing discrimination LGBT students will face on the law school and university campus, we ask all University administrators to continue to take action on this issue. Unless Columbia wishes to see its non- discrimination policy rendered meaningless, the University and the Law School should continue to support an exercise of free speech rights in denouncing the military's discriminatory policy. The Court has said that nothing in the Solomon Amendment prohibits schools from engaging "in speech" or "organizing student protests." We urge the Administration to respond to the military's violation of its non-discrimination policy by organizing and funding school- wide protests of military recruitment efforts.

Of course, I prefer my own solution of leaving the recruiters twiddling their thumbs on campus by having all interested students go off-campus for interviews.

March 05, 2006

What You Get With a Signing Bonus

I had breakfast earlier today with a former neighbor of mine who is currently a MPP student. He will be working for a consulting firm in DC upon graduation. While discussing the topic of signing bonus he mentioned that he had to sign a contract stating among other things that he will not assert any defenses that he deserves the bonus (because if he leaves within two years he has to return at least 50% of the bonus). Both of us were a bit troubled by that. What if he gets hit on the head by a falling tile and can't return to work? What if his boss who is eager to get the bonus back places swastikas all over his office and says "Jews Out" (he's Jewish). This can't be right, can it? Do law firms have similarly onerous terms for accepting any signing bonus or advance? Bar stipend?

March 01, 2006

And Mississippi Follows

A Mississippi House committee voted Tuesday to ban most abortions in the state - an unexpected move that left abortion opponents grappling to stake out a position on a proposal that could prompt a lengthy court battle.
The only abortions allowed under the bill would be if the life of the pregnant woman were in danger. There would be no abortions allowed in cases of pregnancy caused by rape or incest.

Rep. Omeria Scott, D-Laurel, persuaded the House committee to approve an amendment that says the state would provide free education and medical services to any child born in the state, until age 19.
Scott said her proposal could extend beyond the public schools and Medicaid already offered. She said it could make a significant difference for a poor woman who's trying to decide whether to have an abortion.
"Anyone who wants to take this language out of this bill is not for life," Scott said.

If guaranteeing health care even for people who fall outside the bounds of Medicaid -- insufficiently poor, exhausted their five years on welfare, etc. -- this is at least a small step forward, but unlikely to change the minds of women who already are unsure of how to feed and house themselves and their existing families.